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Tribal Decision on Implementation TAS/Delegation/Tip TIP/TAS Training December 3, 2012

TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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3  Ensures flexibility  Tribes and EPA develop approaches  Elements to be  Reasonably severable  Consistent with legal requirements TAR review - Modular Approach

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Page 1: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

Tribal Decision on Implementation TAS/Delegation/TipTIP/TAS Training December 3, 2012

Page 2: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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Trust responsibility Federal Implementation Plan (FIP)

required With necessary and appropriate

provisions Without unreasonable delay

Fundamentally tribes don’t have to implement the CAA the Regions will implement where the tribes don’t

Federal Implementation

Page 3: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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Ensures flexibility Tribes and EPA develop approaches Elements to be

Reasonably severable Consistent with legal requirements

TAR review - Modular Approach

Page 4: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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Tribal Decision Matrix Matrix developed to prompt and explore

options for tribes considering taking on implementation of CAA

The following scenarios are explained in decision- matrix process with assumption that Tribe may want to start with no, little, or limited

participation Tribe may want to start small and develop

programs over time, understanding that any combination or mixture of these steps are for tribes

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Page 5: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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Decision Matrix5

Page 6: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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Assessment Using “assessment” in general context,

tribe will need basic information in order to determine extent they want to participate in implementation of CAA

Determine area of concern What type of pollutant? Are there issues that community members

have brought to your attention?

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Page 7: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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Assessment (cont.) Determine what level of assessment is

appropriate for your area, Example: windshield surveys, emissions

inventories Identify sources out there, so when presenting

to council you have data to support proposed plan of action

Identify plans for future economic development (potential sources on the way)

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Page 8: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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Identify/Determine Priorities Identification of priorities is important

Number of sources on reservation Resources Political direction of the tribe Sovereignty protection Economic development Environmental protection

Determine what the tribe is willing to engage in or prepared to do today to implement CAA And, to what extent in the future

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Page 9: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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Basic Option Selection Develop possible options through

meetings within tribe and with EPA using available information

Identify questions to ask EPA to make more informed decisions or to help your tribal government make more informed decision

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Page 10: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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Steps in Process Next slides will move from lowest

involvement or none at all, to EPA implementation, to TIP development

Keep in mind: tribe may determine to jump in between steps due to capacity and predetermined work as move toward developing a plan

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Page 11: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

Tribal Decision Matrix

NAAQS through a Federal Implementation Plan (FIP)

EPA required to implement programTribe not required to participate

Tribe may decide To do nothingLimit participation (i.e., outreach, conference calls)Participate or begin building capacity and work with EPAReview permitsHelp with outreach to community

TAS

Page 12: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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EPA Implementation12

Cons No fee mechanism – built in Implementing other rules Less control over progress/rule implementation Can be seen as infringement on sovereignty

Pros/Cons More supportive of sovereignty than if they had

their own rules (Ask Rio for comment on delegation)

Page 13: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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EPA Implementation (cont.) Pros Builds capacity Credibility No TAS necessary Medium resources – administratively Control – more than other options No enforcement for tribe (no

responsibility to track sources)

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Page 14: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

Tribal Decision Matrix

Established agreement to authorize administration of one or more federal rules in FIP with tribe, to assist in whole or partial administration of specific part of interest to tribeEPA retains enforcement responsibility EPA will need FIP in place for this option

TAS

Page 15: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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Delegation Cons No fee mechanism – built in Implementing other rules Pros/Cons More supportive of sovereignty than if

they had their own rules Can be seen as infringement on

sovereignty No enforcement for Tribe

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Page 16: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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Delegation (cont.) Pros Capacity Credibility No TAS necessary Medium resources – administratively Control – more than other options

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Page 17: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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Delegation (cont.) Requirements for delegation

Must show federal recognition Have governing structure to carry out duties

and powers over defined area Identification of boundaries covered by

delegation Provide adequate authority to carry out the

aspects of provisions Demonstrate tribe has or will have technical

capacity• For tribe to take delegation, TAS is not

required

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Page 18: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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Delegation (cont.)18

Delegation can be requested for entire FIP or it can be severable

Roles and responsibilities: tribes can take on as much as they want or limit amount of responsibility under delegation Tribe may determine under inherent authority to

develop tribal rules or codes to implement program

Capacity: tribes can work through delegation with EPA to build capacity through delegation work

Page 19: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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Steps in Requesting Delegation

General Process for Delegation 1. Tribe expresses interest to EPA about receiving

delegation for certain provisions of the CAA2. Tribal staff -to- EPA staff phone call is appropriate first

step 3. Tribe and EPA continue ongoing discussions during

development of delegation request. EPA will review draft request as appropriate

4. Tribe formally requests delegation by way of letter to EPA Regional Administrator from Tribal Chairperson that includes all information required by delegation rule

5. EPA formally responds to tribe and acknowledges receipt of request for delegation

6. EPA sends a letter to all appropriate governmental entities

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Page 20: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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Steps in Requesting Delegation (cont.)General Process for Delegation 7. EPA can provide tribe with draft delegation agreement

modeled after existing delegation agreements 8. Tribe and EPA review comments by tribe on draft

delegation agreement and agree on language for delegation agreement

9. Tribe and EPA consult on government-to-government basis at tribe’s request

10.After delegation agreement is signed, EPA publishes notice of delegation in Federal Register

11.When notice of delegation agreement is to be published in Federal Register, EPA publishes announcement of delegation agreement in local newspapers

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Page 21: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

Tribal Decision Matrix

Signals tribe’s intention to develop an ongoing program

Establishes authority to be treated as a state for key issues like reviewing permits, designations, transport

Can help level playing field with states

TAS

Page 22: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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TAS

Cons Need identify boundaries to be coveredPros/Cons EPA will retain enforcementPros Establishes the tribes intention to run a

program Provides support for tribal participation in

state activities Exertion of tribal sovereignty – “higher”

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Page 23: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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Treatment as a State (TAS) Tribes need TAS to implement

CAA via TIP and may get TAS for delegation

Can obtain TAS for many elements of CAA

Requirements for TAS

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Page 24: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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TAS Timeline EPA’s process for reviewing a federally-

recognized tribe’s eligibility application for TAS in order to administer a regulatory program under CAA. Four steps:Step 1: Tribe submits application

Pre-application discussions and technical assistance (between tribe and EPA)

EPA review of pre-application materials (if requested) Tribe submits application to EPA EPA notifies tribe of receipt of application and, as

needed, requests additional information from tribe, within 30 days of receipt of application

Tribe submits additional information (if applicable)

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Page 25: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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TAS Timeline (cont.)25

Step 2: EPA review EPA reviews application and determines if it is

complete EPA notifies all appropriate governmental entities

of the application and how it identifies reservation boundaries, and of any assertions regarding tribal authority over non-reservation areas, within 30 days of receipt of initial, complete application

EPA notifies tribe, in writing, that application is complete no later than when EPA provides notification in step 1

Page 26: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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TAS Timeline (cont.)Step 3: Comment period (if needed)

Appropriate governmental entities and public can comment regarding reservation boundaries or tribal authority over non-reservation areas; comments generally due within 30 days

EPA provides comments to tribe within 30 days of close of comment period

Tribe reviews comments and may respond If authority dispute arises that EPA cannot

promptly resolve, it may approve portion of application addressing undisputed areas. See 40 CFR 49.9(e)

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Page 27: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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TAS Timeline (cont.)27

Step 4: Final TAS eligibility decision

EPA prepares decision document and response to comments

EPA regional official signs decision document

EPA notifies tribe of decision within 30 days of signature

Page 28: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

Tribal Decision Matrix

Tribe can choose to develop TIP to assume primacy for ensuring that NAAQS are met within its jurisdiction

Developing TIP gives tribe option of implementing & enforcing its own program

Once TIP is approved, provisions of implementation plan become federally enforceable in addition to being enforceable by tribe

TAS is required for TIP

TAS

Page 29: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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Tribal Implementation Plan/Tribal RuleCons TIP is more involved (TAS, boundary, code

writing) Enforcement collaboration with other

jurisdictions (MOU/MOA) Role – resource intensive “High” Processing – intensive coordination with EPAPros/Cons Enforcement issues

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Page 30: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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TIP/Tribal Rule (cont.)Pros Tribally implemented program Tribal rules Exertion of tribal sovereignty –

“highest” Fees can be built in Most control over sources

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Page 31: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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Tribal Implementation Plan (TIP) As part of decision process, tribe may determine to

develop/implement a TIP Tribe may request ALL or some elements of CAA

Title I to develop TIP TIP may include selected elements of complete

NAAQS implementation plan, provided elements are reasonably severable from other CAA elements not included in TIP Potential elements of a TIP are• Maintenance strategies• Attainment strategies• Source preconstruction permits (NSR)• Regional haze plans

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Page 32: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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TIP RequirementsRequest for determination of eligibility

TAR requires EPA to determine that tribe iseligible to implement CAA programs (TAS) before approval• Tribe must demonstrate federal recognition• Have governing body carrying out substantial

government duties and powers• Provide evidence that tribe will perform functions

pertaining to management and protection of air resources within exterior boundaries of its reservation or other areas within tribe’s jurisdiction• Demonstrate tribe’s capability to administer

effectively the program for which it is seeking approval

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Page 33: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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TIP Requirements (cont.) Administrative elements

Letter of submission from tribal leader requesting EPA approval of TIP elements

Documentation that tribe has Adopted plan into law Sufficient authority in tribal law to adopt and enforce TIP Adoption date Effective date of plan

Evidence that tribal environmental agency has sufficient personnel and resources to develop, implement, and enforce proposed TIP elements

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Page 34: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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TIP Requirements (cont.)34

Evidence that public was notified in accordance to EPA requirements; certification that public hearings were held; compilation of public comments and tribe’s response• Public needs at least 30 days to review TIP

and submit comments to tribe• Public hearings should be advertised at least

30 days in advance (preferably 60 days) Technical information used to prepare TIP

Page 35: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

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TIP Requirements (cont.) Demonstration of enforcement authority

Enforcement program should include• Resolutions and laws passed by tribal government to

establish authority to do inspections and enforce laws• Requirements for emission sources to monitor

emissions and periodically report to tribe emissions data and other information needed to determine compliance• Procedures for inspecting sources to verify emission

limits are met, issuing notice of violations, and assessing fines

Limitations on tribe’s criminal enforcement authority will not prevent TIP approval• Generally covered by MOU between tribe and EPA

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Page 36: TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

Areas/Questions to consider when taking initial action or moving between basic options in decision matrix

Example QuestionsWhat capacity is necessary to take on delegationWhat are criteria for delegationWhat resources are neededHow implement a delegated programWhat are pros/cons for tribeWhat are specific roles and responsibilities of tribe and/or EPA in delegated program

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Decision Matrix (Basic Options)